Shutterfly 2009 Annual Report Download - page 121

Exhibit 10.23
TEMPORARY SUBLEASE, ASSIGNMENT AND ASSUMPTION OF LEASE
AND CONSENT TO ASSIGNMENT
THIS TEMPORARY SUBLEASE, ASSIGNMENT AND ASSUMPTION OF LEASE AND CONSENT TO ASSIGNMENT
(the
“Assignment”) is entered into as of the 7
th
day of May, 2008 (the “Date of this Assignment”), by, between and among
WESTPORT OFFICE
PARK, LLC , a California limited liability company (successor to WESTPORT JOINT VENTURE) (“Landlord”); METRICSTREAM, INC.
,
a Delaware corporation (formerly known as “ZAPLET, INC.” and “Firedrop.com”) (“Assignor”); and SHUTTERFLY, INC.
, a Delaware
corporation (the “Assignee”).
RECITALS
A. By that certain Lease Agreement dated as of August 12, 1999, between Landlord, as “Landlord,” and Assignor, as “Tenant”
,
as amended by that certain Amendment No. 1 to Lease dated as of February 28, 2000 (“Amendment No. 1”)
and further amended by that certain
Amendment No. 2 to Lease dated as of October 18, 2002 (collectively, the “Lease”),
Landlord leased to Assignor certain premises consisting of
approximately 37,537 square feet of space (the “Premises”) (
11,847 square feet in Suite 101 on the first floor and 25,690 square feet in Suite 201
on the second floor), in the building located 3000 Bridge Parkway, Suite 201, Redwood City, California (the “Building”).
B. Assignor desires to (i) sublet a portion of the Premises to Assignee from June 1, 2008 through and including August 14, 2008,
and (ii) assign its rights and obligations under the Lease unto Assignee effective as of August 15, 2008, and Assignee desires to assume the
rights and obligations of Assignor under the Lease.
C. Subject to the terms hereof, Landlord has consented to and does hereby consent to such sublet and assignment.
NOW, THEREFORE , in consideration of the above-
stated premises, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed by, between and among Landlord, Assignor and Assignee as follows:
1. Temporary Sublease of First Floor to Assignor .
(a)
Subject to all terms, covenants or conditions of this Section 2, Assignor does hereby sublease to Assignee and Assignee
hereby agrees to sublease from Assignor those certain premises consisting of approximately 11,847 square feet of space (“
Temporary Sublease
Premises”) in the first floor of the Building as described in Amendment No. 1 (the “Temporary Sublease”).
Assignee will also have the right to
39 unreserved parking spaces available to Assignee under the Lease.
The term of this Temporary Sublease shall commence as of June 1, 2008
(the “Sublease Effective Date”) and shall expire on August 14, 2008, unless sooner terminated pursuant to any provision hereof.
(b)
Assignee shall pay to Assignor, in lawful money of the United States, for each calendar month of such term, monthly
base rent (“Monthly Rent”)
of $29,617.50. In addition, Assignee shall tender to Assignor, all other amounts which Assignor is required to pay to
Landlord for the Temporary Sublease Premises pursuant to the terms, covenants and conditions of the Lease (“Additional Rent”),
which amount
is currrently $9,347.00 per month. Monthly Rent and Additional Rent for any period during the term hereof which is for less than one month
shall be prorated. Amounts paid by Assignee to Assignor for Monthly Rent and Additional Rent for the period June 1, 2008 through and
including August 15, 2008, shall subject to prompt readjustment upon receipt from Landlord of actual amounts of Additional Rent due for such
period. Monthly Rent and Additional Rent shall be payable in advance on or before the first day of each calendar month of the term of this
Temporary Sublease, without deduction, offset, prior notice or demand, in lawful money of the United States. Monthly Rent shall be paid to
Sublessor at 3000 Bridge Parkway, Redwood Shores, CA 94065, Attn: Corporate Controller, or at such place as Sublessor may from time to
time designate in writing.
(c) The provisions of the Lease are (except as otherwise herein specifically provided) hereby incorporated in this Temporary
Sublease with the same effect as if entirely rewritten herein, and shall fix the rights and obligations of the parties hereto with respect to the
Temporary Sublease Premises with the same effect as if Assignor and Assignee were, respectively, the landlord and tenant named in the
Lease. Assignee hereby covenants to perform the covenants and undertakings of tenant under the Lease during such term of this Temporary
Sublease, and agrees not to do or permit to be done any act which shall result in a violation of any of the terms, covenants and conditions of the
Lease. Except as otherwise specifically provided herein, Assignee is to have the benefit of the covenants and undertakings of the Landlord as
landlord in the Lease to the extent the same are applicable to the Temporary Sublease Premises during the term of this Temporary Sublease. It is
expressly understood and agreed, however, that Assignor is not in the position to render any of the services or to perform any of the obligations
required of Assignor by the terms of this Temporary Sublease, and that performance by Assignor of its obligations hereunder are conditioned
upon due performance by the Landlord of its corresponding obligations under the Lease. It is further understood and agreed, therefore, that
notwithstanding anything to the contrary contained in this Temporary Sublease, Assignor shall not be in default under this Temporary Sublease
for failure to render such services or perform such obligations required of Assignor by the terms of this Temporary Sublease which are the
responsibility of Landlord as landlord under the Lease, but Sublessor agrees to take all reasonable measures to cause Landlord to perform said
obligations. The term “reasonable measures” shall not include legal action against the Landlord for Landlord’
s failure to so perform unless
Sublessee agrees to pay all costs and expenses in connection therewith.
2. Assignment and Assumption of Lease . Effective as of August 15, 2008 (the “Assignment Effective Date”),
Assignor hereby
transfers, assigns and conveys to Assignee all of the right, title and interest of Assignor in, to and under the Lease, and all of Assignor
’
s